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Charan v Begg [1995] FJHC 59; Hbc0225j.88s (29 March 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0225 OF 1988

Between:

1. SURESH SUSHIL CHANDRA CHARAN
2. ANURADHA CHARAN
Plaintiffs

- and -

1. ALIM BEGG s/o Karim Begg
SAFURA BI d/o Kasim Khan &
BEGG CONSTRUCTION LIMITED
2. HOUSING AUTHORITY
3. THE SUVA RURAL LOCAL AUTHORITY
Defendants

Mr. S.S.C. Charan for Plaintiffs
No appearance for 1st Defendants
Mr. V. Maharaj for 2nd Defendant
Mr. D. Singh for 3rd Defendant

JUDGMENT

This is an application by the Housing Authority (hereafter 'the defendant Authority') under the High Court Rules and the 'inherent jurisdiction' of the Court for an order dismissing the plaintiffs' action for want of prosecution on the ground of the plaintiffs' failure "... to proceed with this action since 17th day of June, 1992".

In support of its application an officer of the Housing Authority has sworn an affidavit deposing to so much of the background facts that concerns the plaintiffs' claim against 'the defendant Authority'. This may be briefly stated. In 1981 the plaintiffs acquired a vacant block of land from the defendant Authority and later in 1987 they obtained a loan in excess of $13,000 from 'the defendant Authority' for the purpose of constructing a dwelling house on the land. The loan was secured by a mortgage granted over the plaintiffs' land and all improvements thereon. The contract to build the plaintiffs' house was granted to the 1st defendant company and 'the defendant Authority' as the lender was expressly authorised by the plaintiffs to make progress payments to the builder.

The plaintiffs' claim against 'the defendant Authority' is that in making the various progress payments to the builder 'the defendant Authority' was in breach of its contractual and statutory duty (the terms and nature of which are not entirely clear) and/or was negligent insofar as it well knew that the plaintiffs were dissatisfied with the building works which they claimed was defective in numerous respects. (See: in particular, paras 24 & 25 of the plaintiffs' amended Statement of Claim.)

Returning to the defendants' affidavit, four (4) paragraphs bear closer examination, namely paragraphs 7, 8, 9 and 10 in which the 'status' of the plaintiffs' loan account with 'the defendant Authority' is traced in some detail. Suffice it for present purposes to say that the plaintiffs only made loan repayments under the mortgage over a period of 2 years and then stopped in 1989. Needless to say the plaintiffs mortgage debt has continued to escalate with added interest, and arrears have continued to accumulate to the extent that 'the defendant Authority' now seriously doubts its "... chances of recovering the full debt under the mortgage" which, "... as at 13th day of March 1995 stood at $11,910.44".

It is a matter of regret that the 1st plaintiff who has had the personal conduct of the plaintiffs case throughout, has uncharacteristically not seen fit either to file an affidavit in reply or to appear on the date fixed for the hearing of this application which was once deferred owing to the summons being 'short-served'.

In the result the matters deposed in the defendant's affidavit have not been denied or explained including the assertions:

"(that) the plaintiffs ... have let out their premises to a tenant at a monthly rental of $100.00 (one hundred dollars) since 1989." (See: para.9)

and

"(that) the plaintiffs have not taken any steps since early 1992 to prosecute their claims ..."(See: para. 11).

With that background I set out the rather chequered chronology of the plaintiffs' action:

(1) On 31.3.88 the 1st plaintiff issued a Writ of Summons with a statement of claim which I described on a previous occasion as: "bears unnumbered paragraphs and is in the nature of a narrative resembling an endorsement rather than a proper statement of claim with pleadings".

(2) On 12.4.88 after appearances had been entered by all the 5 defendants sued, the 1st plaintiff issued a summons for summary judgment under Order 14 of the High Court Rules in which an interim injunction was also sought against the 2nd and the then 3rd and 4th defendants.

(3) On 4.5.88 this Court delivered a judgment dismissing the plaintiffs 'Or.14 application' and granting the defendants "unconditional leave to

defend the action".

(4) On 10.5.88 the plaintiffs issued an application

for leave to appeal to the Fiji Court of Appeal against this Court's 'Or.14 judgment' and amongst other orders renewed its application for an interim injunction against the 2nd and the then 3rd and 4th defendants.

(5) On 19.5.88 the plaintiffs sought to enter default judgment against the 1st defendant company for "damages to be assessed by the registrar with costs". This was rejected.

(6) On 24.5.88 the plaintiffs filed a notice appealing against the registrar's refusal to enter judgment in default of personal service of the 1st defendant company's defence on the plaintiffs.

(7) On 1.6.88 this Court delivered judgment rejecting all of the plaintiffs' applications in its summons of 10.5.88. (See: 4 above)

(8) On 14.7.88 this Court dismissed the plaintiffs appeal against the registrar's refusal to enter default judgment. (See: 6 above)

(9) On 6.10.88 the plaintiffs issued a motion seeking an interim injunction against the defendant Authority but in the course of argument on 20.10.88 the application was withdrawn by the plaintiffs.

Thereafter the action effectively went to sleep for almost two (2) years until:

(10) On 3.7.90 the plaintiffs filed a notice of discontinuance of the appeal in Civil Appeal No: 10/89 (the subject matter of which remains a mystery). Also on the same day, the plaintiff sought leave to join his wife as a second plaintiff and also to join the directors of the 1st defendant construction company as defendants jointly and severally with the 1st defendant company and finally, leave to amend the Statement of Claim. Leave was granted on 10.8.90 by Byrne J.

(11) On 4.9.90 the plaintiffs filed an Amended Writ of Summons and an amended Statement of Claim. Noteworthy by their absence in the amended action were the former 3rd and 4th defendants.

(12) On 10.9.90 the newly-constituted 3rd defendant (previously the 5th defendant) filed an amended Statement of Defence and the now enlarged 1st defendant entered an appearance on 17.9.90.

(13) On 4.10.90 the plaintiffs issued an application against the 3rd defendant for an order to produce various official records and documents for inspection and, for leave to serve interrogatories. The application was granted by Byrne J. on 2.11.90 along with an 'interim liquidated default judgment' against the 1st defendants and 'the defendant Authority' for failure to serve a defence.

(14) On 26.11.90 the defendant Authority applied to set aside the default judgment and this was granted by Byrne J. on 3.12.90. No similar application was made by the 1st defendants.

(15) On 7.1.91 the plaintiffs issued a motion for leave to appeal against the order of Byrne J. setting aside the default judgment entered against the defendant Authority. (See: 14 above)

(16) On 29.1.91 an officer of the 3rd defendant filed an affidavit responding to the plaintiffs interrogatories.

Thereafter over a period of some 15 months, the case was called on numerous occasions before the then Chief Registrar and Byrne J. to deal with various applications either pending or then filed against the 3rd defendant and its officers until finally on 8.4.92 this Court with a view to 'expediting the trial of the matter' obtained the agreement of the plaintiffs to the withdrawal of their then pending applications for leave to appeal against the order of Byrne J. (see: 15 above) and for the appointment of a special referee. This Court also noted on that occasion the plaintiffs undertaking 'to proceed to trial' and the existence of an unexecuted liquidated default judgment against the 1st defendants. (See: 13 above)

(17) On 21.5.92 Plaintiffs issued a 'Summons for Directions' which was granted by the Chief Registrar on 17.6.92 and which included an order:

"(4) That this action be tried at Suva before a Judge alone and be set down within thirty (30) days, the estimated length of the trial being two days."

(18) On 14.7.92 the defendant Authority filed its affidavit verifying documents and on 28.9.92 the plaintiffs did likewise.

Thereafter the action lay dormant for a further 2 1/2 years until the present application was brought by 'the defendant Authority' on 16.2.95. In this regard I note that Or.34 r.1(2) of the High Court Rules expressly provides:

"Where the plaintiff does not, within the period fixed (i.e. 30 days from 17.6.92), set the action down for trial, the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and the Court may order the action to be dismissed accordingly or may make such order as it thinks fit."

I turn next to consider the established principles that guide a Court in the exercise of its inherent power 'to strike out an action for want of prosecution' and I begin with a preliminary reference to the 'statement of principle' to be found in the judgment of Cross J. when his lordship said in Zimmer Orthopaedic Ltd. v. Zimmer Manufacturing Co. (1968) 2 ALL E.R. 309 at 311:

"The essence of the matter, as I understand it is this. It is for the plaintiff ... to get on with the action and to see that it is brought to trial with reasonable despatch. The defendant is normally under no duty to stimulate him into action, and the plaintiff cannot complain that he gave him no warning before applying to have the action dismissed for want of prosecution."

next, reference may be made to the observations of Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 Q.B. 229 when in describing the nature of the Courts power his lordship observed at p.259:

"The application is not usually made until the period of limitation for the plaintiff's cause of action has expired. It is then a Draconian order and will not be lightly made."

and finally, to a passage in the judgment of Lord Griffiths in Department of Transport v. Chris Smaller Ltd. (1989) 1 A.C. 1197 when his lordship said at p.1203:

"The power should be exercised only where the Court is satisfied ...

2 (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and

(b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendant ..."

In dealing with the first 'pre-condition' viz. 'inordinate and inexcusable delay' I confine myself to the 2 1/2 years that have elapsed since the parties submitted their affidavits verifying documents, as being the relevant period of delay, and although no attempt has been made by the plaintiffs to explain or excuse the delay, can it be said to be 'inordinate'?

Bearing in mind the stage to which proceedings had advanced namely, where pleadings had closed, orders had been made on a 'summons for directions' and discovery had been effectively completed by the plaintiffs and 'the defendant Authority', (although not it seems by the 3rd defendant), I have no hesitation in holding that the plaintiffs' delay in setting down this action for trial is both 'inexcusable and inordinate'. (cf: the delay and circumstances in Reggentin v. Beecholme Bakeries Ltd. noted in (1968) 2 Q.B. 276.)

I turn next to consider the second 'pre-condition' to the exercise of the court's discretion namely, whether the delay that has occurred in this case gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or to have caused serious prejudice to 'the defendant Authority'.

In doing so I am not unmindful that the 'Certificate of Completion' of the plaintiffs' dwelling house was issued sometime in late 1987 and although at that stage a large number of building 'defects' would have been noticeable and were subsequently noted in correspondence exchanged between the parties in early March 1988, the present state of those 'defects' is largely unknown - they may have been rectified or conversely, they may have deteriorated further - what cannot be doubted however is that the dual effects of the passage of time (in this case over 7 years) and the occupation of the plaintiffs' dwelling house by tenants ('since 1989'), cannot but have altered the original state of the plaintiffs' dwelling house, yet its unoccupied state would be the relevant 'state' which would fall to be considered by the Court should this matter proceed to trial.

In those circumstances even bearing in mind that 'the defendant Authority' was not the actual building contractor and also had a separate remedy available to it under the mortgage, I am firmly of the view that there is a very real risk that it would not be possible now to have a fair trial of the action. Needless to say, as pleaded, 'the defendant Authority's' liability (if any) depends to a large extent upon the plaintiffs' first establishing the precise 'defects' in the work carried out by the defendant builder in the construction of the plaintiffs' dwelling house.

As was said by Lord Oliver of Aylmerton in Murphy v. Brentwood District Council [1991] UKHL 2; (1991) A.C. 398, a case which may yet figure prominently in this case, at 483:

"... the fact that the claim was, in essence, one based upon the failure of the defendant to prevent the infliction of tortious injury by the builder rendered it necessary to determine also the question of what, if any, liability lay upon him ... The liability of the local authority and that of the builder are not, therefore, logically separable."

The plaintiffs' action against 'the defendant Authority' is accordingly dismissed with costs to 'the defendant Authority' to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
29th March, 1995.

HBC0225J.88S